Senior Planner Commerdinger reported that, with the new amendment recently passed by Council, this item would normally have been reviewed at staff level. However, because the Floor Area Ratio (FAR) exceeds the requirement for this site, the Conditional Use Permit portion of the request must be reviewed by the Planning Commission. In this case, the FAR is supportable with the traffic model and the available square footage in the traffic zone. Staff has recommended approval of the proposal subject to ten conditions of approval, including landscaping and building elevation upgrades, to ensure the addition will reflect a uniform presence with the existing building.

Public hearing opened.

Roger Watson, Land Entitlement Development Services, represented the applicant. He informed the Commission that this would be an addition to an existing Lucky's distribution facility. He indicated that he had read and concurred with all of the recommended conditions of approval, including those listed in the Engineer's letter. He pointed out on the vicinity sketch exactly where the addition would be located.

Public hearing closed.

There was a consensus of the Commission for approval. MOTION by Commissioner Ballard, seconded, and CARRIED unanimously by voting members present, that the Negative Declaration be CERTIFIED. The reading of the title of Resolution No. 6804 APPROVING site and architectural plans for the construction of a 168,964-square-foot addition to an existing 233,461-square-foot industrial building and approving a Conditional Use Permit to exceed the .400 Floor Area Ratio for the zone on property located at 444 West Lambert Road, was waived. MOTION by Commissioner Ballard, seconded and CARRIED unanimously by voting members present, that said Resolution be ADOPTED AS WRITTEN.

ITEM NO. 2BOARD OF APPEALS. CITY OF FULLERTON.

Staff report dated October 7, 1998, was presented pertaining to an appeal of the decision of the Hearing Officer regarding the issuance of a Notice of Violation of Chapter 7.38 of the Fullerton Municipal Code - "Newsracks."

Chairman Sandoval wished clarification on how the Commission would proceed in this matter. Deputy City Attorney Barlow stated that this was a di novo hearing of an appeal, where the Commission will hear and consider evidence offered by both sides as to whether the newsracks in question were in compliance with the City's newsrack ordinance. This is a factual based determination by the Commission. She added that formal rules of evidence would not be followed in this hearing, but questions may be asked of both sides. Should there be an objection to any evidence presented, the Deputy City Attorney would advise on whether the evidence should be considered admissable in this administrative proceeding. Also, the testimony heard need not be sworn testimony.

Commissioner Ballard asked exactly what the Commission would be deciding, since the newsracks in question have been removed; thus, the case would be moot. Deputy City Attorney Barlow clarified that mootness is a concept that the courts often use to determine if the issue is no longer valid. In this case, however, the opposing counsel had arguments regarding the ordinance itself, and wished to preserve those arguments with transcripts of the Planning Commission hearing.

Code Enforcement Supervisor Barton reported that the City's newsrack's ordinance requires that all newsracks in a public right of way be permitted. It also limits the number of newsracks in any one location to six, and limits the height of any newsrack to four feet. J's Distributing presently has a permit to locate four newsracks on the sidewalk in front of the post office at 1350 East Chapman Avenue. On July 15, 1998, a code enforcement officer observed that J's Distributing had placed four double racks and four single racks in the public right of way. Notices of Violation were issued on four of said racks for being unpermitted, and four for exceeding the height limit of four feet. A letter of appeal was subsequently filed, requesting a hearing before the Hearing Officer. Said hearing was held on August 13, 1998, and based upon the evidence presented, the Hearing Officer denied the appeal and allowed the Notices of Violation to stand. Staff then received a letter of appeal from Roger Jon Diamond, representing J's Distributing, requesting a hearing before the Planning Commission. Staff recommended denial of the appeal.

Commissioner Ranii asked if it would be acceptable to staff if a newsrack did not exceed four feet and could be configured to distribute multiple publications, and Code Enforcement Supervisor Barton answered affirmatively.

Commissioner Munson inquired if staff had received a complaint which would have caused the inspection of the premises. Ms. Barton stated that prior to and subsequent to the enactment of the current ordinance, staff had received many complaints regarding the number of newsracks at post office locations. Once the new ordinance was in place and permits had been issued, Code Enforcement began its enforcement of the ordinance by reviewing all of the post office locations.

Commissioner Simons questioned whether any complaints received pertained to the material within any of the newsracks, and Ms. Barton answered affirmatively. In this particular instance, however, J's Distributing was not in violation of the code for content.

Commissioner Ballard wished staff to clarify how determination was made as to which of the newsracks were in violation of the ordinance. Ms. Barton noted that there had been some confusion during the Hearing Officer's hearing, and staff agreed to dismiss the Notices of Violation for those racks which were unpermitted; the height requirement was the only issue being appealed at this time.

Roger Diamond, 2115 Main Street, Santa Monica, first stated he would most likely exceed the 10-minute time limit to speak, and asked for indulgence from the Commission while he explained the aspects of his case. He pointed out that during any further appeals, he would be limited to presenting only the evidence presented at the Planning Commission hearing, and wished to present all of his evidence. He indicated his plan to challenge the constitutionality of the ordinance in superior court, and wished to make an adequate record of this hearing for a court challenge, if this should be necessary. Mr. Diamond made the following challenges to the ordinance:

When the notices of violation are issued, they are not issued to any particular rack, as they are not numbered or identified in any way. The failure to have an ordinance which delineates particular racks by number violates due process because the owner is unaware of which newsrack is violating the law. In this case, the four double racks were removed, leaving the four single racks, even though the four double racks should have been considered as four, and not eight.

The four double racks do not exceed the height limitation as stated in the Notice of Violation, because the height measures less than 48 inches if measured from the bottom of the rack to the top of the rack, rather than from the top of the rack to the sidewalk.

The City discriminated against Mrs. Nielson's newsracks because the materials contained in them was of an erotic nature. Although this material is legal, Mrs. Nielson felt she was being singled out, and would produce photos depicting other newsracks which are in violation of the ordinance, but for which no citations have been given. The ordinance is in violation of the equal protection clause of the U.S. Constitution, as well as the State Constitution. Even if the ordinance is not facially invalid, the appellant felt that the ordinance is being discriminatorily applied and enforced because "mainstream" newsracks are being allowed to remain.

The fees involved with both obtaining a newsrack permit, and appealing decisions of the Hearing Officer and Code Enforcement, are too extreme.

Commissioner Ranii asked for the definition of the term "facially invalid." Mr. Diamond explained that, under constitutional law, there are two ways to challenge a law. One way is a facial challenge, which means that the law, as written, is invalid. The second way is by challenging the way a law is applied, meaning that it is written correctly; however, as it's being implemented, it is enforced improperly.

Mr. Diamond expressed his concern with the testimony being heard not being "sworn" and added that Mrs. Nielsen would have no objection to being sworn in before she spoke to the Commission. Deputy City Attorney Barlow stated that it would be entirely up to the Commission whether or not they chose to have all witnesses in this matter sworn in. Chairman Sandoval noted that, because they were not hearing the testimony as the Board of Appeals; rather, as the Planning Commission, that sworn testimony would not be necessary.

Juanita Nielsen, 13522 Close Street, Whittier, first stated that the K-Jack 175, the type of newsrack she was asked to remove because it was too high, could be placed on a lower pedestal to be under the approved height limit, but was told by the code enforcement officer that the rack could not be modified. She had photographs showing other newsracks which exceeded the height limitations which still remain on public right of way. She presented the following photographs as evidence:

PHOTOGRAPH 1

The main Fullerton post office at 1350 E. Chapman Avenue.

PHOTOGRAPH 2

Seven machines in front of the main post office. Should only be six machines at any one location, and Mrs. Nielsen has permits for 4 of them.

PHOTOGRAPH 3

The Sunny Hills post office.

PHOTOGRAPH 4

Six machines in front of Sunny Hills post office. One is set over a manhole, one is four feet away from a street sign, and one is an empty rack holder, which is not lit.

PHOTOGRAPH 5

Same location, showing a plastic "add on" to one of the racks, and a measuring stick showing that it exceeds the height limitation.

Showing newsracks on the corner of Placentia and Chapman. One of the machines is within a bus stop.

PHOTOGRAPH 9

Denny's Restaurant at Harbor and Hill Avenues. Mrs. Nielsen has permits for six newsracks, and there are additional unpermitted racks.

PHOTOGRAPH 10

State College/Chapman Avenue. Mrs. Nielsen has permits for six newsracks, but there are unpermitted newsracks which exist and take up space which could be utilized by Mrs. Nielsen.

PHOTOGRAPH 11

Same location, showing unpermitted racks exceeding height limitation.

PHOTOGRAPH 12

Commonwealth/Mountain View. Racks placed right next to a lampost.

PHOTOGRAPH 13

Commonwealth/Acacia. Racks setting right next to a bus bench.

PHOTOGRAPH 14

Yorba Linda/Bradford. Not only do racks set right next to a plant, they are less than five feet from a bus stop and one sits right on the driveway.

PHOTOGRAPH 15

Another photo of same location.

PHOTOGRAPH 16

Same intersection around the corner. There are 14 newsracks at this location. Mrs. Nielsen has permit for six newsracks which are allowed at this location. The unpermitted racks are over height limit.

Mr. Diamond asked Mrs. Nielsen to describe the materials which are displayed in her newsracks, and if they were of an adult nature. Mrs. Nielsen replied that, since the enactment of new laws, there is nothing of a "harmful" nature in any of her publications, but that they could be referred to as having "adult themes." Mr. Diamond emphasized that while said publications had adult themes, they did were not illegal and contained no harmful matter.

Chairman Sandoval interjected at this point, and pointed out that this line of questioning did not relate to the violations for which Mrs. Nielsen had been cited, i.e. height limitation and number of racks. Mr. Diamond reminded her that because of the content of these publications, the code enforcement division is pursuing these newsracks, as opposed to other racks within the City which also have violations, but are not being cited.

Deputy City Attorney Barlow added that the violations in question do not relate to the content of the materials contained in Mrs. Nielsen's newsracks. However, the appellant had the right to make her argument before the Commission if she felt she was being discriminatorily enforced upon because of the content of the racks. She suggested that the Chairman ask Mr. Diamond to conclude his remarks pertaining to this subject, and move on to other factual evidence which they wished to present.

Commissioner Ballard stated that thus far, the Commission had been shown 16 photographs showing newsrack violations throughout the City. He was of the opinion that (1) because of the size of the City, Code Enforcement had not inspected these locations; (2) that the photos did not prove that these racks were being discriminatorily enforced because of content; and (3) that, typically, the Code Enforcement staff inspects locations on a "complaint received" basis.

Mr. Diamond asked Mrs. Nielson if the newsrack violations depicted in her photos were clearly of "mainstream" publications, and Mrs. Nielson answered affirmatively. She added that the only reason she presented the specific 16 photographs, was because she was told that Code Enforcement has only inspected the newsracks at Fullerton post offices thus far.

Tom Lee, 13620 Busby Drive, Whittier, indicated that he was originally the business license holder for the newsracks in question. He contended that each time a permit was given, there was always a subsequent inspection of the site to ensure compliance. He pointed out that when permits were obtained for the Fullerton main post office site, an inspection was made and the Code Enforcement officer could see the other newsrack locations at that time. At one time, Mr. Lee was in possession of over 200 newsracks in the City, and is now down to 33 racks. He expressed his frustration over having to pay for permits at locations where there are clearly other violations of "mainstream" publications, which are allowed to remain. He reminded the Commission that the Code Enforcement inspectors are prejudiced against his newsracks and have been for many years.

Commissioner Ranii questioned whether there were any unpermitted newsracks at the main post office location at the present time, and Mr. Lee answered affirmatively. Commissioner Ranii then inquired whether staff had initiated proceedings against those unlicensed machines. Code Enforcement Supervisor Barton stated that Notices of Violation had not been issued against those machines; however, at the time of their last inspection there had only been six racks at that location. She added that when the Notices of Violations were issued to J's Distributing, Code Enforcement staff issued 15 Notices of Violation at that time at that location, including the Orange County Register, Auto Trader Magazine, and an Apartment Rental Guide.

Mr. Lee further testified that he had been cited because of height restrictions, and told by Code Enforcement to remove the top half of the rack, but objected to that because he could not infringe on the patent of K-Jack Engineering, who is the manufacturer of his newsracks. He had to remove approximately 60 of these racks because of the 48" height limits, yet there are other newsracks which are almost 60" in height, and are allowed to remain.

Commissioner Ballard asked if Mr. Lee was in possession of evidence that these locations had been inspected by staff and not cited. Mr. Lee answered that he had hundreds of pictures showing locations where his newsracks had been legally tagged, but the tags had been removed by other publications. He was not in possession of said photos at this time, but could produce them if necessary. Commissioner Ballard reminded Mr. Lee that his testimony itself stating that Code Enforcement did not cite other publications was not conclusive, and that Mr. Lee would have to provide factual evidence that this was, in fact, taking place. Mr. Lee said he was in possession of photos which showed the Notices of Violation attached to his newsracks, but no others.

Commissioner Munson reiterated that he also was not satisfied that evidence had been produced by the appellent which proved that Code Enforcement had been aware of the other violations within the City.

Mrs. Nielson added that at the present time there are Notices of Violations attached to other newsracks (Auto Trader, Apartment Guide, and an Hispanic publication) at the corner of State College Boulevard and Chapman Avenue. These violation notices had been attached to those racks since October 13, 1998, and the racks have not been removed. Mrs. Nielsen noted that she holds the permits for all six approved racks at that location.

Code Enforcement Supervisor Barton wished to bring to the Commission's attention that staff had not received any complaints from J's Distributing regarding any of the photos shown, nor have they received any calls regarding the newsracks in violation. While Ms. Barton concurred that there may be newsracks in violation of the ordinance throughout the City, due to the workload of the Code Enforcement staff of only four persons, it is difficult to concentrate on newsracks every day. Commissioner Munson asked Ms. Barton to give an estimate as to how many newsrack complaints are investigated within any given time period. Ms. Barton answered that they are done on an "as time allows" basis. If Code Enforcement officers are in the field and have extra time, they will inspect newsracks, write a Notice of Violation if necessary, and attach one copy to the newsrack. A copy of the violation is then mailed to the owner, who will then have ten days to file an appeal of that notice. If, at the end of that time period, the newsrack is still in violation, it is then impounded. To date, the Code Enforcement staff has impounded approximately 35 newsracks. Some of the impounded newsracks belong to The Register, Auto Trader, and other mainstream publications. Commissioner Munson was concerned about the ten-day appeal having passed for the newsracks referred to by Mrs. Nielsen. Deputy City Attorney Barlow reminded the Commission that the appeal period consists of ten working days, which would still give the owner additional time from the date of the hearing. Code Enforcement Supervisor Barton continued by stating that Council has directed the Code Enforcement staff to be reactive, by responding to complaints received, and staff will continue in that manner until directed otherwise.

Commissioner Munson asked if any complaints had been received concerning the height of Mrs. Nielsen's newsracks. Ms. Barton answered that complaints had been received regarding the number of newsracks at the post office location. Director Dudley added that when the ordinance was adopted, Council directed staff to conduct an initial "sweep" of the newsracks, because they had received complaints about the number of newsracks in the City, especially at the post office locations.

Commissioner Ranii questioned whether Mrs. Nielsen could call in a complaint whenever she notices unpermitted newsracks at any location, and Ms. Barton answered affirmatively; staff will respond within three to five working days.

Commissioner Munson inquired whether Mrs. Nielsen had, in fact, provided staff with a list of newsracks in violation of the code. Mrs. Nielsen indicated that she had called the Code Enforcement office that morning to give that information. Ms. Barton reminded her that during the appeal with the Hearing Officer, Mrs. Nielsen was to submit a list of addresses to Code Enforcement, which had not yet been received. Mrs. Nielsen stated that she had orally advised Ms. Barton in July of locations of violating newsracks, and also submitted a list to Code Enforcement Officer Toni Carvalho on August 13, 1998, the date of the appeal hearing with the Hearing Officer.

Mr. Diamond wished to ask Ms. Barton the following questions:

Mr. Diamond: Ms. Barton is it your position that basically the City's policy is to be reactive, not to aggressively enforce the Code, but to investigate after receiving complaints from citizens?

Ms. Barton: That has been the City Council's position, yes.

Mr. Diamond: At any time have any of the persons complaining to you indicated, in any way, that they were upset or concerned about the content of the materials in Ms. Nielsen's newsracks.

Deputy City Attorney Barlow reminded Mr. Diamond that Ms. Barton had previously testified that the citations issued were a result of an inspection conducted after the enactment of the ordinance.

Mr. Diamond: I misunderstood. Ms. Barton, did you testify earlier that your office has received complaints from citizens regarding newsracks?

Ms. Barton: Over the course of the last few years, yes we have.

Mr. Diamond: Have any of those complaints been related to the content of those newsracks, as opposed to the size or height of the newsracks.

Ms. Barton: We've received complaints regarding both.

Mr. Diamond: With respect to Mrs. Nielsen's newsracks, do you know whether or not your office, or any official in Fullerton, has received any complaints from citizens regarding Mrs. Nielsen's newsracks because of the contents of the newsracks?

Ms. Barton: Not specifically, no.

Mr. Diamond expressed concern that Ms. Barton characterized her response by stating "specifically" and wished her answer to be rephrased.

Commissioner Ranii indicated he was uncomfortable with the "courtroom" line of questioning, and was ready to hear a summary from both sides involved.

Commissioner Munson, while understanding of the fact that Mr. Diamond was attempting to gather evidence for a further court appeal, stated that this was a Planning Commission, not a courtroom.

Deputy City Attorney Barlow reminded Mr. Diamond that he could not tell staff how to testify and informed him that Ms. Barton had already answered his question. Deputy City Attorney Barlow further attempted to clarify the record by asking Ms. Barton when she issued the Notices of Violation for the newsracks in questions, did she issue the notice because of the content or for some other reason? Ms. Barton answered that the Notices of Violations were issued for newsracks which exceeded a height of four feet, and had nothing to do with the content.

Chairman Sandoval expressed frustration with the way the hearing was being conducted and advised Mr. Diamond that the Commission had the discretion to deny extension of a ten-minute time period to allow him more time to present his case. She requested that he use any remaining time to summarize his case in an expedient manner.

Mr. Diamond summarized by presenting the following: if a City official who enforces a law only goes to places they are directed to go to because other persons are improperly selecting the target based upon content of the material, then the City official cannot immunize himself or herself, from a discriminatory argument on the ground that she/he is only responding to complaints if, in fact, the complaints are discriminatory in origin. We would not have that argument if Ms. Barton had said that she uniformly enforces the ordinance against everyone, but she has said that the City is a reactive agent, and basically reacts to complaints. Therefore, we have discrimination, even though she personally is not motivated by discriminatory intent. I realize this argument is subtle, and may escape some people, but it is a legitimate argument that can be made and is recognized by the courts. Unfortunately, either I have not explained it adequately or you do not understand the argument, but somewhere there is a failure of communication and I will assume that it is my fault and I have not adequately explained this concept to you. I take responsibility for that. Whenever there is a group out there, who don't like content of newsracks, if they have a plan to complain only about newsracks which contain erotic material, and if the policy of the City is only to respond to people's complaints, the effect of the City's policy is discrimination. If you disagree, so be it, but that is the argument we're making here. It is irrelevant what Ms. Barton personally feels, if the affect of what she is doing is discrimination. That is why I attempted to find out from her whether or not the people who are complaining have this invalid purpose. I see I have touched a nerve here and I will conclude unless I can continue to question the witness. Ms. Barton did not answer the question directly-she characterized the question and then answered the question as characterized, which is a standard way witnesses respond to questions if they do not wish to answer a precise question. We're trying to get at the truth here.

Deputy City Attorney Barlow pointed out to Mr. Diamond that his intent to question Ms. Barton was not limited, and Ms. Barton had testified that she did not go out on the day that the citations in question were issued in response to any complaint at all, but as part of a Council-directed "sweep."

Director Dudley added that, for the record, staff has issued 33 active permits to this appellent, and have, therefore, not denied them the right to sell their materials.

Mr. Diamond rebutted by stating that because there hasn't been a total ban, does not mean that there has not been discriminatory enforcement, and is no defense to say that "some" are allowed. He maintained that the policy of the City, to only respond to complaints, results in discrimination if the complaints are generated by opposition to the content of the material, which is the case here-circumstantial evidence.

Mr. Diamond asked staff if they had ever confiscated a newsrack owned by the Los Angeles Times. Ms. Barton answered that she did not know because she did not have that particular list of confiscated newsracks in front of her at that time. He then asked if Ms. Barton was aware that the Los Angeles Times presently had two newsracks paired together at one location. Ms. Barton stated she could not answer that question, because she had not investigated that complaint and it has not brought it to her attention.

Public hearing closed.

Commissioner Ranii recognized that the post office locations have had newsrack problems over the years, and Code Enforcement is acting to complaints from citizens. While not agreeing with all requirements in the newsrack standard, there is presently an ordinance in effect which should be followed. He did not see a reason to uphold the appeal, and while he concurred that there are other locations which have violations, he did not feel the appellant was singled out when they were issued their Notice of Violations.

Commissioner Ballard felt that the particular citations being appealed did not stem from complaints, but rather from direction from the City Council to check all Fullerton post offices. This site was inspected and at the time of inspection, a number of citations were issued, in addition to the ones issued to the appellant. The appellant had also testified that there were other machines within the City which had been issued violations and were considered "mainstream". While he did not hear a lot of evidence regarding the height of Mrs. Nielsen's machines, he indicated that they should probably be measured from the sidewalk, not the base, thus making the Notices of Violation legal. He did not feel the citations were based on any discriminatory enforcement, but by Council direction, and did not uphold the appeal.

Commissioner Simons also did not uphold the appeal, but due to the fact this has come to the attention of the Planning Commission, he hoped that Code Enforcement would make a more diligent effort and place higher priority placed on newsrack inspections.

Chairman Sandoval stated that if she was a permit holder for newsracks, and noted any violations, she would make a diligent effort to make Code Enforcement aware of them.

MOTION by Commissioner Ranii, seconded and CARRIED unanimously by voting members present, that the appeal be DENIED and the decision of the Hearing Officer be upheld.

The title of Resolution No. 6805 DENYING an appeal of the Hearing Officer's decision upholding Notices of Violation issued to J's Distributing for violations of Chapter 7.38 of the Fullerton Municipal Code, was read and further reading was waived. Deputy City Attorney Barlow suggested to the Commission that a finding be made, and added to the Resolution, pertaining to the argument by the appellant concerning discriminatory enforcement. MOTION by Commissioner Ballard, seconded and CARRIED unanimously by voting members present, that the Notices of Violation issued to J's Distributing on July 15, 1998, were not the result of discriminatory enforcement, and that this condition be added to the Resolution and APPROVED AS AMENDED.

OTHER MATTERS

ITEM BREVIEW OF COUNCIL ACTIONS

Chief Planner Rosen gave a brief report on recent City Council meetings.

PUBLIC COMMENTS

There was no one present who wished to speak on any matter within the Commission's jurisdiction. A citizen from the audience announced that she had come to hear an item which had been continued until November 18, 1998. Senior Planner Rosen apologized for the misunderstanding, and gave her the correct date of the hearing. Chairman Sandoval suggested that staff mail a newly revised agenda to her.

AGENDA FORECAST

The next regularly-scheduled meeting will be November 18, 1998, at 4:00 p.m.

ADJOURNMENT

There being no further business, the meeting was adjourned at 6:03 p.m.